OBA ELLIJAH OLADELE AYENI (Olupoti of Ipoti) & ORS. V. PRINCE R. A. AJIMOTI ELEPO & ORS. (2007)

OBA ELLIJAH OLADELE AYENI (Olupoti of Ipoti) & ORS. V. PRINCE R. A. AJIMOTI ELEPO & ORS.

(2007)LCN/2272(CA)

In The Court of Appeal of Nigeria

On Monday, the 12th day of March, 2007

CA/IL/45/2003

RATIO

APPEAL: WHETHER THE SPLITTING OF ISSUES INTO SUB-ISSUES IS ACCEPTABLE

In the case of Omozeghian -vs- Adjarho (supra), this Court per Augie JCA, held thus; “I agree with the Respondent that issues as formulated by the appellant are more wide-ranging than are necessary in the determination of this appeal. In addition, the appellant split his issue 2 into (i), (ii) & (iii) which is absolutely unacceptable. Authorities abound which state that it is clearly unacceptable for an issue to raise in it, other issues. It is well settled that most appeals are won on a few cogent and substantial issues, well framed, researched and presented than on numerous trifling slips.” See Iloabuchi -vs- Ebigbo (2000) 8 NWLR (Pt. 668); & Ehikhamwen -vs- Iluobe (2002) 2 NWLR (Pt. 750) 151 where the court also held that the practice of splitting issues is likely to confuse consideration of principal issues with subsidiary issues. PER TIJJANI ABDULLAHI, J.C.A.

APPEAL: HOW A BRIEF SHOULD BE REPLIED

In the case of Cameroon Airlines -vs- Otutuizu (supra) this court held that: “A reply brief should be limited in answering only new points. PER TIJJANI ABDULLAHI, J.C.A.

EVIDENCE: THE INGREDIENTS FOR A SUCCESSFUL INVOKED RES-JUDICATA

Now, it is settled by a plethora of decided authorities that for the defence of Res-Judicata to be successfully invoked the following ingredients must be present: 1. That the parties or their privies involved in both the previous and present cases are the same. 2. That the claim or issues in dispute in both cases are the same, 3. That the res or subject-matter of the litigation in both cases are the same. 4. That the decision relied upon to support the plea is valid, subsisting and final; and 5. That the court gave the previous decision relied upon to sustain the plea is a court of competent jurisdiction. PER TIJJANI ABDULLAHI, J.C.A.

JUSTICES

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

Between

1. OBA ELLIJAH OLADELE AYENI (Olupoti of Ipoti)
2. THE CHAIRMAN, IJERO LOCAL GOVERNMENT, IJERO-EKITI
3. THE SECRETARY, IJERO LOCAL GOVERNMENT, IJERO-EKITI Appellant(s)

AND

1. PRINCE R. A. AJIMOTI ELEPO
2. PRINCE GARBRIEL BABADIPO
3. PRINCE JOHN A. FA YOSE
4. PRINCE AYO OMOTILOYE (For themselves and on behalf of Aji, Alafinjomi and Ajefunmobi Ruling House and the entire Ejiyan people) Respondent(s)

TIJJANI ABDULLAHI, J.C.A.(Delivering the Leading Judgment): This is an appeal against the Ruling of the lower court, coram E. O. Kowe J, delivered on 21/7/2003. The Appellant was the 1st Defendant at the lower court while the Respondents were the plaintiffs.
By a writ of summons and statement of claim dated 5th day of November, 2002 and filed the same date, the Plaintiffs/Respondents claim against the Defendants/Appellants as follows:
“(a) A declaration that the Obalaaye of Ejiyan is the head chief and or Oba of Ejiyan Quarters in Ipoti Ekiti.
(b) A declaration that it is the prerogative of the Ejiyan people and chiefs to select, appoint and install an Obalaaye of Ejiyan in accordance with their age-long customs and traditions.
(c) A declaration that no Olupoti in history had ever appointed or installed an Obalaaye of Ejiyan.
(d) A declaration that the 1st Defendant is not a prescribed authority over the Obalaaye Chieftaincy.
(e) A declaration that the 2nd & 3rd Defendants either acting alone or in concert with the 1st Defendant have no business with or role to play in the appointment and installation of an Obalaiiye apart from being merely informed of such an appointment and installation after the completion of same by the Ejiyan, people and Chiefs.
(f) AN ORDER OF PERPETUAL INJUNCTION restraining the
(i) 1st defendant either by himself, Chiefs, servant, agents, aides or through any person ,or persons however from interfering or meddling in the process of nominating, selecting, appointing or installing of any candidate including any of the plaintiffs as the Obalaaye of Ejiyan or disrupting, disorganizing or thwarting any meeting called by the Ejiyan people and Chiefs for the purpose of nominating, selecting, appointing, installing an Obalaaye of Ejiyan.
(ii) The 2nd & 3rd Defendants either acting alone or in conjunction with the 1st Defendant from interfering or meddling in the process of nominating, selecting appointment and installing an Obalaaye of Ejiyan.
(iii) The 1st Defendant from removing, deposing dethroning or punishing any traditional Chiefs in Ejiyan Quarters”
The Appellant filed a statement of defence dated 29th day of November, 2002 and filed on 2nd day of December, 2002 while the 2nd and 3rd Defendants did not file any statement of defence.
The Appellant through his counsel raised a preliminary objection on point of law by the motion on Notice dated 21st day of March, 2003 and filed on the same date praying the trial court for an order dismissing the suit of the Plaintiffs on the ground that the action of the Plaintiffs is res-judicata or that plaintiffs are estopped per judicatam by virtue of the judgment of the Court of Appeal therein in suit No: CA/IL/18/2001.
The motion on preliminary objection on point of law was argued on 7th and 21st May, 2003 respectively and ruling reserved for 21st July, 2003.
The trial court in its ruling delivered on 21st July, 2003 after holding that the subject matter, issues and Plaintiffs are the same in the previous and present suit however held at page 22 lines 1 -11 thus:
“In the two of the ingredients of the plea of res judicata are missing viz (1) the parties in the previous suit are not the same as the parties in the present case (2) The decision of the Court of Appeal in appeal No. CA/IL/18/2001 has been appealed against and as such not final. The Law is that unless all the essential ingredients of the plea of res-judicata are established by the Defendants, the plea of res-judicata cannot be sustained. See Oke -vs- Atoloye (supra) Uoye -vs- Olubode (Supra).
In sum since two of the essential ingredients of the plea or res-judicata are missing the doctrine of estopple per rem judicata will not apply. The Defendant/Applicant’s application fails. His preliminary objection on point of law cannot be upheld and it is hereby dismissed.”
Dissatisfied with the said Ruling, the Appellant appealed to this court by filing a Notice of Appeal consisting of three grounds.
On the 27th of April, 2005, Learned Counsel for the appellant, moved a motion dated 31/03/05 and filed on 4/4/05 for leave to amend the existing Notice of Appeal by substituting an amended Notice of Appeal which said application was granted and the amended Notice of Appeal was deemed filed and served on the other parties on the same date (27/04/2005).
The amended Notice of Appeal consists of five grounds. Shorn of their particulars, they are as follows:
“GROUND ONE:
The learned trial Judge erred in law and thereby came to a wrong decision when he held at page 78 Lines 4 – 6 of the records.
“In suit No. HAD/64/2000 and Appeal No: CA/IL/18/2001 the Chairman Ijero Local Government was not a Defendant or a
Defendant/Respondent.”
GROUND TWO:
The Learned trial Judge erred in law and thereby came to a wrong decision when he held at page 78 Lines 26 – 30.
“There is no wherein the statement of claim in the present suit where the plaintiffs alleged the Government of Ekiti State of any wrong doing. The Attorney-General is therefore not a necessary Defendant in the present suit.”
GROUND THREE:
The Learned trial Judge erred in law and thereby came to a wrong decision when he held at page 75 lines 22 – 30; page 76 Lines 10 – 07.
“That decision of the Court of Appeal has been appealed against to the Supreme Court as shown in exhibits A & B attached to the plaintiffs’ counsel counter-affidavit against Notice of Preliminary Objection on point of Law. Exhibit A & B are leave to appeal and Notice of Grounds of Appeal to the Supreme Court respectively…. Meanwhile the ‘appeal is existing and as such the decision of the Court of Appeal in CA/IL/18/2001 is not final ….”
GROUND FOUR:
The Learned trial Judge erred in law and thereby came to a wrong decision when after finding that the issues, subject-matter and plaintiffs in the present and previous suits are the same and that the decision of the Court of Appeal in CA/IL/18/2001 is not final, failed to adjudge that the institution of the present suit HIJ/17/2002 during the pendency of the purported appeal to the Supreme Court against the decision of the Court of Appeal CA/IL/18/2001 is an abuse of court process in line with the principle laid down by the Supreme Court in Ikini & Ors. -vs- Edjerode & Ors. (2001) 18 NWLR (Pt. 745) 446, and Onalaja -vs- Oshinubi (1949) 12 WACA 503.
GROUND FIVE:
Assuming (but not conceding) that the Defendants in the previous and present suit are not the same, the learned trial judge erred in law in not holding that the institution of the present suit HIJ/17/2002 by the Plaintiffs is an abuse of court. ”
Briefs were filed and exchanged. The Appellant formulated the following issues for determination:
“Issue NO.1: RES JUDICATA:
If the Chairman, Ijero Local Government is a party to the previous suit No: HAD/64/2000; If the Attorney-General and Commissioner for Justice, Ekiti State is a party in the present suit HIJ/17/2002 and if the Court of Appeal Judgment in suit No. CA/IL/18/2001 is final WHETHER the plea of res judicata is sustained.
In the alternative, if the Chairman, Ijero Local Government is not a party to the previous suit but a nominal party in the present suit, if the Attorney-General and Commissioner for Justice, Ekiti State is a party to the present suit and if the Court of Appeal Judgment No. CA/IL/18/2001 is final, WHETHER the plea of res judicata is sustained.
In the alternative, if the chairman of the Ijero Local Government is not a necessary party in the present suit HIJ/17/2002; if the Attorney General & Commissioner for Justice, Ekiti State is a necessary Defendant in the present suit and if the Court of Appeal Judgment in CA/IL/18/2001 is final, WHETHER the plea of issue estoppel per rem judicata is sustained.
ISSUE NO.2: Abuse of Court Process:
If the chairman, Ijero Local Government is a party to the previous suit HAD/64/2000, if the Attorney-General & Commissioner for Justice, Ekiti State is a party in the present suit HIJ/17/2002, if the purported appeal to the Supreme Court against the Court of Appeal Judgment in suit CA/IL/18/2001 is existing and having regards to the principles laid down in Ikine -vs- Ederode (2001) 18 NWLR (Pt. 745) 446 and Onalaja -vs Oshinubi (1949) 12 WACA 503, WHETHER the institution of the present suit HIJ/17/2002 constitutes an abuse of court process?
Having regards to the findings of the trial court that the plaintiff, issues and the subject-matter in the previous and present suits are the same and having regards to the principles laid down in Saraki -vs- Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188 and the recent,’ decision (unreported) of the court of Appeal, Lagos Division delivered on 17th December, 2003 in “Vesa General Properties Ltd. -vs- Governor of Lagos State & Ors” WHETHER it is an abuse of Court process to institute the present suit HIJ/17/2002 during the pendency of the purported appeal to the Supreme Court against the judgment of the Court of Appeal case No: CA/IL/18/2001?”
The Respondents on the other hand raised a preliminary objection under Order 3 Rule 15 of the Court of Appeal Rules praying the court to strike out the entire grounds of appeal dated 16th May, 2005 and or the issues formulated thereon.
The grounds of the objection ‘as can be gleaned from the record are:
(i) Ground 1 has no nexus with particulars provided there under
(ii) Particulars a, band c under Ground 1 are academic, hypothetical, moot and speculative
(iii) Particulars a, band c under Ground 2 as well as particulars a, b, c, d, e, g, h, i, j, k, l and m under Ground 3, the entire Ground 3 together with particulars a, b and d under Ground 5 are repetitive, ‘argumentative, prolix, verbose and unwieldy
(iv) Grounds 4 and 5 are fresh issues
Learned Counsel for the Respondents copiously argued in a brief spanning over 11 pages that the grounds are academic, hypothetical, moot and speculative. He submitted quite copiously that the Court of Appeal has no business to deal with moot grounds of appeal. Those grounds 4 and 5 are fresh issues that could only be filed with the leave of the Court of Appeal.
Learned Counsel for the Appellant urged us to discountenance the submissions of the Learned Counsel positing that, the grounds af appeal are valid and subsisting grounds.
They are neither verbose nor augmentative. The fresh issues he further posited were raised after the leave of this court was sought and obtained.
On the 13/12/2006, when the appeal came before us for hearing. Learned Counsel for the parties adopted their briefs of arguments and proffered oral arguments in amplification of the said briefs.
Learned Counsel for the Appellant, Mr. Disu, filed his brief dated 31/3/2005 which was deemed filed on 27/04/2005. The Appellant’s reply brief dated 28/02/2006 and deemed filed on 30/3/3006. The Learned Counsel adopted the two briefs and urged us to allow the appeal and dismiss the plaintiffs’ case at the lower court.
Counsel for the Respondents Mr. Omotunde file a preliminary objection to Appellant’s’ brief dated 10/11/2005 and filed the same date. He also filed the Respondents’ brief dated 10/11/2005 which was deemed filed on 26/11/2005. On the preliminary objection, Learned Counsel referred the Court to the cases of Omozegbian -vs- Adjarho (2006) part 969, P.33 at P.51, paragraph F – G and Iloabuchi -vs- Ebigbo (2000) 8 NWLR (Part. 668) P. 197 at P. 219 and submitted that both issues 1 and 2 are purely academic and hypothetical as same are dotted or punctuated with the word “if” The Appellant he further submitted has put his appeal into the realm of academic or moot questions. This court he went on will not entertain moot or academic issues.
On the reply brief, Learned Counsel referred to paragraphs 2.02 and 2.03 and submitted that there are no new points but just mere further arguments and they are therefore contrary to Order 6 Rule 5 of the Rules of this Court. He urged us to discountenance or strike them out. He cited the case of Cameroon Airlines -vs- Otutuizu (2005) 9 NWLR (part 929) P. 202 at Pages 218 – 219.
On Res Judicata, Learned Counsel submitted that the principles grounding the case on it (Res Judicata) are very strict, the absence of one defeats the claim of Res Judicata. On principle that the parties in suit No. HIJ/17/2002 are not the same with those of suit No. HAD/64/2000, Learned Counsel referred us to pages 1, 3, 10, 17, 29 and 78 lines 8 -15 and lines 21 – 29 as well as page 79 lines 3 – 5 of the record. He also referred us to the Appellant’s brief, page 12, paragraphs 5 and 6.
Secondly, Learned Counsel contended that the present case, suit No. HIJ/17.2002, the issue canvassed in this case has been determined on the merit before suit No.HAD/64/2000 was struck out on preliminary objection. Thirdly, he further contended that the main issues canvassed in suit HIJ/17/2002 are different from those of suit No. HAD/64/2000. Finally, he went on the Appellant in the lower court abandoned legs 2 and 3 of his objection. He referred to page 61 lines 20 – 21 of the record.
Learned Counsel submitted that though Appellant sought permission of this court to raise these issues, they are not issues that can be raised in this court. He contended that appellate court sits mainly on decisions of the trial courts. He further contended that an issue abandoned before the trial court cannot be raised in this court. He urged us to discountenance the issue of joinder and abuse of court’s process canvassed by the Appellant. He relied on the case of A.N.P.P. -vs- R.O.S.S.D. (2005) 5 NWLR (Part 920) P. 140 at 158, paragraphs F- H.
In conclusion, Learned Counsel referred to paragraphs 2.03 and 3.01 of the reply brief of the Appellant and submitted that the ingredients grounding the plea of Res-Judicata are not ‘present in this appeal. Learned Counsel then adopted his preliminary objection and the Respondents’ brief and urged us to dismiss the appeal.
In response to the address of the Learned Counsel for the Respondent Mr. Disu, Learned Counsel for the Appellant, submitted that paragraphs 2.02 and 2.03 of his reply brief are what the lower court said in its ruling and therefore they are not new issues as such.
Learned Counsel submitted that, though the Respondents’ Counsel submitted that decision in case No. HAD/64/2000 was not a decision on the merit, he submitted in paragraph 2.06 of his reply brief that the said decision finally determined the rights of the parties their in. Learned Counsel further submitted that for all purposes, it was a decision on the merit. The decision of whether it was a decision on the merit was not canvassed at the lower court. Counsel cannot therefore raise it without the leave of this court sought and obtained to argue fresh point of law.
Learned Counsel, contended that they argued the issue of abuse of process because they sought and obtained leave of this court to do so. The leave he further contended was given on 27/04/05. Learned Counsel submitted that the Appellant having sought and obtained leave of this court is at liberty to raise those fresh points of law. (joinder and abuse of process). He urged us to allow the appeal and dismiss the plaintiffs’ case at the lower court.
Now, crucial points for consideration from the onset in the preliminary objection of the Learned Counsel for the Respondent are:
(i) What a ground of appeal is supposed to contain.
(ii) How is it couched
(iii) How can its validity be determined.”
On issues 1 and 2 formulated by the Appellants’ counsel, which the Learned Counsel classified as hypothetical and academic, I would to observe that a critical examination of the issues under reference will tend to “support the views expressed by the Learned Counsel. In the case of Omozeghian -vs- Adjarho (supra), this Court per Augie JCA, held thus;
“I agree with the Respondent that issues as formulated by the appellant are more wide-ranging than are necessary in the determination of this appeal. In addition, the appellant split his issue 2 into (i), (ii) & (iii) which is absolutely unacceptable. Authorities abound which state that it is clearly unacceptable for an issue to raise in it, other issues. It is well settled that most appeals are won on a few cogent and substantial issues, well framed, researched and presented than on numerous trifling slips.” See Iloabuchi -vs- Ebigbo (2000) 8 NWLR (Pt. 668); & Ehikhamwen -vs- Iluobe (2002) 2 NWLR (Pt. 750) 151 where the court also held that the practice of splitting issues is likely to confuse consideration of principal issues with subsidiary issues”
I am of the considered view that the issues formulated by the respondents which will be reproduced infra are more to the point and capture in a nutshell, the essence of the complaints in the grounds of appeal, and I will adopt them in dealing, with this appeal.
On the reply brief filed by the Learned Counsel for the Appellants, its appropriate from the onset to say with due respect to the Learned Counsel that he misconceived the import and purpose of filing a reply brief. In the case of Cameroon Airlines -vs- Otutuizu (supra) this court held that:
“A reply brief should be limited in answering only new points. A cursory look at the reply brief filed by the Appellant would leave no one in any doubt that it contains what a reply brief should and ought not to contain. It does not answer any new issue/s but rather, it re-urges the whole case of the appellant that is not what a reply brief should contain. Learned Counsel for the Appellants referred to paragraph 2.02 of the reply brief and submitted erroneously in my view that they are not new issues because the trial judge said so in his Ruling. With due respect to the Learned Counsel, he missed the point. Reply brief as I have said earlier is only to answer new issues arising from the Respondent’s brief. The reply brief of the Appellants in the light of all that I said will not begin any consideration in this judgment.
On fresh issues raised as encapsulated in grounds 4 and 5, I am, in complete agreement with the Appellant’s Counsel that leave of this court having been sought and obtained cannot be discountenanced. I am not prepared to accede to the argument of the Learned Counsel for the Respondents that because they were abandoned at the lower court, they cannot be raised at this court, at any rate leave having been sought and obtained in this court has put the matter to rest, at least for now in this court. Learned Counsel for the Respondents identified two issues for determination as follows:
(i) Having regard to the unambiguous and mandatory conditions or ingredients of res-judicata, coupled with the state of pleadings and the peculiar circumstances of the plea or res-judicata can avail the Appellant-grounds 1, 2 and 3.
(ii) Whether suit No. HIJ/17/2002 constitutes an abuse of process of court – Grounds 4 and 5.
For reasons stated elsewhere in this judgment, I adopt these issues as the ones calling for determination in this appeal.
On issue No.1; Learned Counsel for the Appellant submitted that from the present and previous suits, the Olupoti is the 3rd Defendant in the previous suit HAD/64/2000 while the Olupoti is the 1st Defendant in the present suit HIJ/17/2000. The Secretary, Ijero Local Government is the 2nd Defendant in the previous suit while the Secretary, Ijero Local Government is the 3rd Defendant in the present suit. Learned Counsel further submitted that from the previous suit, the Attorney-General, is the 1st Defendant in the previous suit HAD/64/2000. It is also established that the Attorney-General is a Defendant in the previous and present suits are the same.
Learned Counsel referred to page 77 lines 28-30 of the records and submitted that the plaintiffs in the previous and present suits are the same. Learned Counsel further submitted that one of the ingredients of Res Judicata have been established by the Appellant.
The Appellant submitted that there was no appeal against the judgment of the Court of Appeal CA/IL/18/2001 as at 21st May, 2003 when the'” plaintiffs/Respondents’ Counsel was concluding his address before the Learned trial Judge in opposing the preliminary objection. Learned Counsel submitted that the Judgment of the Court of Appeal CA/IL/18/2001 is valid and subsisting and final. This to the Learned Counsel has established the 2nd ingredient of Res-Judicata.
In the alternative, Learned Counsel submitted that Appellant in the alternative, submits that if the Chairman, Ijero Local Government is not a party to the previous suit, if the Attorney-General, Ekiti State is a party to the present suit and if the Court of Appeal judgment CA/IL/18/2001 is final, the addition of the Chairman, Ijero Local Government as the 1st Defendant in the present suit cannot defeat or ought not to defeat the plea of res judicata raised by the Appellant because the Chairman, Ijero Local Government is a nominal party in the present suit.
Learned Counsel urged us to hold that all the ingredients for the application of the plea of Res-Judicata have been met by the Appellant and he urged us to so hold.
Learned Counsel for the Respondents on the other hand submitted that to sustain a plea of estoppel per rem judicatam, the party pleading it must satisfy the following conditions:
(a) That the parties or their privies as the case may be, are the same in the present suit in which the plea is raised as in the previous suit;
(b) That the issues and subject-matter in the previous suit is the same as in the present suit.
(c) That the adjudication in the previous suit was given by a court of competent jurisdiction.
He submitted that failure to satisfy the ingredients stated (supra) means the failure of the plea in its entirety. He relied on the cases of Odutola -vs Oderinde (2004) 12 NWLR (Pt. 888) Page 574 at 585 A-D, 586 F-H, Nkanu -vs- Onun (1977) 5 SC 11 and Kuse-vs- A/G Plateau State (1999) 4 NWLR(Pt. 597) 1.
Learned Counsel for the Respondent contended that as clearly stated on the processes the parties are not the same. For a party relying on the plea of res judicata to succeed, the parties must be the same. Learned Counsel submitted that the first fundamental condition to ground the plea of res-judicata to the effect that the parties must be the same is lacking. Even at this, the plea of estoppel per rem judicata has failed in its entirety since one of the essential ingredients of the plea of estoppel per rem judicata is missing. See Tsokwa Oil & Marketing Co. -vs- UTC (Nig) Plc. (2002) 12 NWLR (Pt. 782) 437 at 465 – 467, Fadiora -vs- Gbadebo (1978) 3 SC 219 and Odutola -vs- Oderinde (supra).
On whether the issue raised in the two cases is the same, learned Counsel contended that it is different. The issue in suit No. HAD/64/2000 is on the purported appointment or elevation of the 1st defendant as the prescribed authority over the Obalaaye of Ejiyan. The instant case, however has to do with the constitutional right’ of Ejiyan people to self-determination particularly the instant case, however, has to do with the constitutional right of Ejiyan, people to self-determination, particularly with regard to or concerning the issue of who should be their king.
He relied on the cases of Oloriegbe -vs- Omotosho (1993) 1 NWLR (Pt. 270) SC, 386 at 398 paragraph H and 399 Paragraphs A – B as Well as the Case of Dokubo -vs- Omoni (2001) FWLR (Pt. 61) SC 1804 at 1820 Paragraphs C – D.
Learned Counsel contended that suit NO. HAD/64/2000 was not determined on its merit. It was struck out by the trial court on the basis of the preliminary objection raised by the defendants to that suit which was essentially anchored on the fact that the suit was statute barred. Learned Counsel submitted that for res judicata to operate as estopple, in all its ramifications, it is important that the case between the parties presently in court had been adjudicated between the parties before on the merits and the court had read and delivered a final judgment. He referred the court to the case of Obasi -vs- Bros Co. Ltd (2005) 9 NWLR (Pt. 929) Pg. 117 at 128, paragraphs D – E.
Learned Counsel submitted that it has been demonstrated that the ingredients for the application of the defence of Res-Judicata is completely lacking in the case at hand. He urged us to so hold and resolve this issue in their favour.
Now, it is settled by a plethora of decided authorities that for the defence of Res-Judicata to be successfully invoked the following ingredients must be present:
1. That the parties or their privies involved in both the previous and present cases are the same.
2. That the claim or issues in dispute in both cases are the same,
3. That the res or subject-matter of the litigation in both cases are the same.
4. That the decision relied upon to support the plea is valid, subsisting and final; and
5. That the court gave the previous decision relied upon to sustain the plea is a court of competent jurisdiction.Learned Counsel for the Appellant submitted quite copiously that that they have succeeded in establishing all the ingredients stated (supra). The question to be asked at this stage is this, can it be said from the processes filed before the court in this case that the parties are the same in order to sustain a defence of Res Judicata. To answer this question, recourse had to be made to the record. In the present suit the parties, are clearly stated on pages 1, 3 and 10 of the record. The parties in the previous case are stated on pages 17 and 29 of the record.
Needless to say, the plaintiffs in suit No HAD/64/2000 are the Attorney-General and Commissioner for Justice, Ekiti State, the Secretary, Ijero Local Government and Oba E. O. Ayeni, the Olupoti of Ipoti Ekiti, while the defendants in Suit No. HIJ/17/2002 are Oba Elijah Oladele Ayeni, the Olupoti of Ipoti-Ekiti, the Chairman, Ijero Local Government, Ijero-Ekiti, the Secretary, Ijero Local Government Ijero Ekiti.
It is instructive to note that since the actions were brought in a representative capacity it is not only the named plaintiffs who are parties but others who are unnamed but whom the plaintiffs represented are also deemed to be parites.
However, the defendants are not the same as can be gleaned from the names of the Defendants contained in the two processes under consideration.
Next but not the least, question to be asked is whether the issues are the same. Learned Counsel for the Respondents vehemently submitted that the issues are not the same. Learned Counsel submitted that the issue in suit No. HAD/64/2000 is on purported appointment or elevation of the 1st Defendant as the prescribed authority over the Obalaaye of Ejiyan. The instant case, however has to do with the Constitutional right of Ejiyan people to self-determination, particularly with regard to or concerning the issue of who should be their king.
I pause here to state that it is appropriate at this juncture to reproduce the Claims/issues of the parties in the two suits under consideration with a view to finding out whether the claims/issues are the same. In suit No. HAD/64/2000, it is stated inter alia as follows:
“The plaintiffs take this action claiming as follows:
(1) Declaration that the Olupoti is not the prescribed authority over the Obalaaye Chieftaincy of Ejiyan, in Ipoti – Ekiti.
(2) Declaration that the purported act of the Ondo State Government, (now Ekiti State) in making the Olupoti of Ipoti Ekiti the prescribed (sic) over the Obalaaye of Ejiyan” community, if it has been done, without consultation with the Ejiyan community is against the fundamental human rights of the Ejiyan Community the age old custom, and traditional agreement between the Ipoti community the Ejiyan community, and the owa community and therefore, unconstitutional illegal unlawful, null and void and against the dictates of natural justice.
(3) Declaration that by Ipoti/Ejiyan native law and custom the Obalaaye is the person entitled to appoint and install all traditional chiefs in Ejiyan without prior consultation.
(4) An order of perpetual injunction restraining the Olupoti, 3rd defendant from interfering in any way whatsoever with the appointment of traditional of traditional chiefs in Ejiyan.
(5) A mandatory injunction compelling the first and second defendants to make the Obalaaye the prescribed authority over Ejiyan in Ipoti Ekiti in the interest of justice, peace and order and good government and also in the interest of natural justice.”
In suit NO.HIJ/17/2002, the instant suit, the plaintiffs claim from the defendants either jointly or severally as follows:
i. A Declaration that the Obalaaye of Ejiyan is the head chief and or Oba of Ejiyan quarters in Ipoti-Ekiti.
ii. A declaration that it is the prerogative of the Ejiyan people and chiefs to select, appoint and instal an Obalaaye of Ejiyan in accordance with their age-long customs and traditions.
iii. a declaration that no Olupoti in history had ever appointed or installed an Obalaaye of Ejiyan.
iv. A declaration that the 1st defendant is not a prescribed authority over the Obalaaye chieftaincy.
v. A declaration that the 2nd and 3rd defendants either alone or in concert with the 1st defendant have no business with or role to play in the appointment and installation of an Obalaaye apart from being merely informed of such an appointment and installation after the completion of same by the Ejiyan people and Chiefs.
A hard look at the claims of the parties produced (supra) reveals the fact that the issues at stake are the same. Learned Counsel for the Respondents’ argument that in the instant case, the Ejiyan people are fighting for self determination under the Constitution of the Federal Republic of Nigeria is hair splitting argument which I am not prepared to accept.
Be that as it may, in view of the fact that for a plea of Res Judicata to avail the person raising it, all the ingredients stated elsewhere in this judgment must be met, this issue’ having held that parties are not the same must be resolved in favour of the Respondents and against the Appellant.
The next issue for determination is whether suit No. HIJ/17/2002 constitutes an abuse of process of court-Grounds 4 and 5. Learned Counsel for the Appellant submitted that since the subject matter, issues and the plaintiffs are the same as in the previous and present suit as held by the trial court, pages 74, Ls. 16-2, 76 Ls. 8-11, 77 Ls 28-30 of the records and having regard to the submissions of the Appellant in paragraph 3.01.16 above that, the parties in the previous suit and the present suit are the same the finding of the trial court that there is a pending appeal to the Supreme Court against the Court of Appeal Judgment CA/IL/18/2001, the institution of the present suit HIJ/17/2002 constitutes an abuse of court process and therefore the present suit should be dismissed.
For his part, Learned Counsel for the Respondents submitted that the parties in the previous suit and the instant one are not the same. They are in fact different. The major claims in both suits are also different. In the current suit, the major claim is for a declaration that the Respondents have a right to self determination, including the right to choose their king without interruption from the appellant which they have been doing since time immemorial. See Page 7 of the record. In the former suit, the major claim is a declaration that the purported act of the Ondo State Government in appointing or making the Olupoti a Prescribed authority over the Obalaaye chieftaincy is unconstitutional, illegal, null and void. He submitted that there was no abuse of court process where parties as well as the major claims are different. See Awofewo -vs- Oyenuga (1996) 7 NWLR (PT. 460) Page 360 at 367. In Bendel Feeds & Flour Mills -vs- N.I.M.B. Ltd (2000) 5 NWLR (Pt. 655) Page 29 at 48 B-4.
In the case of Nnah George Onyeabuchi -vs- Independent National Electoral Commission (INEC) Abuja and 4 others (2002) 8 NWLR (Part 769) P. 417 at P. 427, the apex court held as follows:
“It is an abuse of the process of court for the plaintiff to litigate again over an identical question which had already been decided against him. Also, where proceedings which were viable when instituted have by reason of subsequent events become inescapably doomed to fail, they may be dismissed as being abuse of the process of the court.”
Again, the apex court held thus:
“Where the twin pleas of Res-Judicata and abuse of Court process are raised in a case, failure of the former does not necessarily lead to a failure of the latter. It is common to find cases being argued and almost often decided on the basis that if one doctrine does not apply then another certainly should. In the instant case, even if the appellant had succeeded on the grounds on which the finding of estoppel that been challenged the appeal would still have been dismissed as there was no challenge to the finding that the suit was in abuse of process. (Aruba -vs- Aiyeleru (1993) 3 NWLR (Pt. 280) 126 referred to) (P. 441, paras B – D).”
It is appropriate at this juncture to state that it is not in dispute that the Respondents had filed an appeal against the decision of the Court of Appeal in suit No. CA/IL/18.2001.
The said appeal, needless to say is an appeal against the decision of Aladejana J of the Ekiti State High Court, sitting at Ado-Ekiti dated 15th day of February, 2001. in suit No. HAD/64/2000. That being the case, I am of the considered opinion that since the present plaintiffs have appealed to the apex court in that case, it is an abuse of court process to have filed case No. HIJ/17/2002 with identical reliefs. I am of the considered view that instead of filing the present case, the plaintiffs should have persued their appeal vigorously in the apex court.
In the case of Onyeabuchi -vs- INEC, (Supra) the apex court further held as follows:
“Once a court is satisfied that any proceeding before it is an abuse of court process it has the power, indeed the duty, to dismiss it: That is to say that once a court is satisfied that the proceedings before it amount to abuse of process, it has the right, in fact the duty, to invoke its coercive powers to punish the party which is in abuse of its process. Such power quite often is exercisable ‘by “‘a dismissal of the action which constitutes the abuse. (Arubo -vs- Aiyelem (1993) 3 NWLR (Pt. 280) 126 referred to) (Pp. 441-442, Paras G – A; 444, para. F).”
In the light of all that I have said this issue must be resolved against the Respondents in favour of the Appellant. For avoidance of doubt, I hold with ease that suit No. HID/17/2002 constitutes an abuse of process of court. The appeal under consideration is pregnant with a lot of merit and it is hereby allowed.
Suit No. HIJ/17/2002 must be and it is hereby dismissed. The Appellant is entitled to the costs of this appeal assessed and fixed at N10,000.00.

IGNATIUS IGWE AGUBE, J.C.A.: I have been privileged to preview the judgment just delivered by my learned brother Abdulahi J.C.A. and by way of addendum I make the following as my humble contribution:-
The 1st Defendant now (Appellant) was sued along with the Chairman Ijero-Ekiti Local Government Council and the Secretary of the said Council by the Plaintiffs/Respondents in the Ekiti High Court sitting at the Ijero Judicial Division. Coram E. O. Kowe J.
The plaintiffs thereat sought for some declarative and injunctive reliefs which have been reproduced in the lead judgment of my learned brother. Suffice it to say however that the the claim of the plaintiffs were as follows:
1. That the Obalaaye of Ejiyan is the head Chief of and or Oba of Ojiyan Quarters in Ipotu – Ekiti.
2. That it is the prerogative of Ejiyan people and Chiefs to select, appoint and install their Obaalaye of Ejiyan in accordance with the age long custom and traditions of the people.
3. That no Olupoti in history had ever appointed or installed an Obaalaye of Ejiyan.
4. That the 1st Defendant (now Appellant) is not a prescribed authority over the Obaalaye Chieftaincy.
The plaintiffs then sought an order of perpetual injunction to restrain the 1st Defendant either by himself or cohorts from intermeddling with the nomination selection appointment and installation of the Obaalaye of Ejiyan or disorganizing or thwarting any meeting called by the Ejiyan people and Chiefs for the purpose of nominating, selecting, appointing and installing an Obaalaye of Ejiyan.
He was also to be restrained from removing, deposing, dethroning or punishing any of the traditional Chiefs of Ejiyan quarters.
As for the 2nd and 3rd defendants they were to be restrained either by themselves or in concert with the 1st Defendant from interfering with the nomination, selection, appointment and installation process of an Obaalaye of Ejiyan.
The 1st Defendant after being served with the originating processes by the plaintiffs filed his statement of Defence dated the 29th day of November, 2002 on the 2nd day of December, 2002 and in paragraphs 21 thereof pleaded the defence of Res judicata and that the claim of the plaintiffs was contrary to law, frivolous, vexatious and an abuse of court process and ought to be dismissed with substantial cost.
The 1st Defendant in line with the provisions relating to proceedings in lieu of demurrer brought a motion on Notice dated 21st day of March, 2003 and filed same day. The motion was supported with an affidavit of sixteen paragraphs, deposed to by one Prince’ Olu Daodu Esq a legal practitioner. Annexed to the affidavit were Exhibits A and B – the judgment of the Court of Appeal in Suit No. CA/IL/18/2001 and the statement of claim in Suit No. HAD/64/2000.
For purposes of the preliminary of objection on the Issue of Res judicata, paragraph 7 of the affidavit in support of the motion is reproduced hereunder as follows:-
“7. That there had been a previous suit involving the present matter and the same issues in Suit No. HAD/64/2000 and Court of Appeal Suit No. CA/IL/18/2001. The judgment of the court of Appeal Ilorin delivered on the 8th April, 2002 and the statement of claim in Suit No. HAD/64/2000 are hereby attached and marked Exhibits ‘A’ & ‘B’ respectively”.
On the other hand the plaintiffs/Respondents deposed in paragraph 4 (V-Vii) of their Counter-affidavit as follows:-
V. The parties in Suit No. HAD/64/2000 and Appeal No. CA/IL/18/2001 are different from that of this case too.
VI. The issues involved in the Suit referred to in (V) supra are different from that of the extant case too.
VII. I know that if there is any relationship with this suit and the suit mentioned in paragraphs (v) and (vi) supra (which is denied) there is an appeal already filed in respect of same. Now shown to me is a copy of each of the proceeding for leave to appeal and Notice and Grounds of Appeal to the Supreme Court marked EXHIBITS A and B respectively.
In paragraph 5 of the Counter-affidavit they further averred thus:
“5. I know as counsel that no law has or can be shown to have been contravened by the Respondents through this Application except by leading oral evidence”.
Arguments on the motion were taken by Counsel on both sides and in the learned trial Judge’s considered Ruling he held as follows at page 78 of the Record of proceedings:-
“In sum since two of the essential ingredients of the plea of Res judicata are missing the doctrine of estoppel per rem judicata will not apply. The defendant/applicants application therefore fails. His preliminary objection on point of law cannot be upheld and it is hereby dismissed. The substantive case is adjourned to 18/9/2003 for hearing”.
Peeved by the Ruling of the learned trial Judge the 1st Defendant/Appellant has now appealed to this Court on three original Grounds and with leave of this Honourable Court an Amended Notice and five Grounds of Appeal were eventually filed.
Pursuant to the Rules of this Court parties were ordered to file their briefs which they obliged and from the Grounds of Appeal two Issues with three sub-issues were formulated by the Appellant’s Counsel while that of the plaintiffs/Respondents gave Notice of preliminary objection to the Notice and Grounds of Appeal filed by Counsel for the Appellant on the grounds that:- (1) Ground 1 of the Grounds of Appeal has no nexus with the particulars provided there under.
(2) Particulars a, b, and c under Ground 1 are academic, hypothetical, moot and speculative.
(3) Particulars a, band c under Ground 2 as well as the particulars a, b, c, d, e, h, i, j, k, l and m, under Ground 3, the entire Ground 4 together with particulars a, b, and d under Ground 5 are repetitive, argumentative, prolix, verbose and unwieldy.
(4) Grounds 4 and 5 are fresh issues. ‘
The learned Counsel for the Respondents prayed the Court to strike out the entire Notice and Grounds of Appeal dated 16th May, 2005 and/or\the issues formulated thereon.
In the learned plaintiffs Arguments in respect of the preliminary objection he has posited rightly in my view that the particulars of some or most of the Grounds are argumentative, prolix speculative and formulated at large. Good examples can be found in particulars d, e, f and g of Ground 1. Those particulars are accordingly struck out.
Particulars a – c are therefore sustained as they emanate from the Ground of Appeal which complains of an error on the findings of the lower court on the parties on the previous suits which the Defendant relies upon in his plea of estoppel per rem judicatam.
As for Ground 2, I find nothing objectionable in the particulars as they relate also to the issue of parties as found by the trial Court that there is no where in the statement of claim in the present suit that the plaintiff alleged any wrong doing against the Government of Ekiti State and that the Attorney General is therefore not a necessary party (Defendant).
Let us not forget that the issue of parties is one of the necessary ingredients of the plea of Res Judicata. I am sure that the plaintiffs/Respondents Counsel cannot claim to have been misled by those particulars.
On Ground 3; I hold that particulars (a)-(d) are enough to sustain the Ground of Appeal as couched. The other particulars as rightly submitted by the learned Counsel for the Respondent are repetitive, argumentative, prolix, verbose land unwieldy and at best fit for the arguments in support of the Grounds or issues formulated.
On Ground 4, I find nothing wrong with the particulars except that particular (b) is repetitive of (a) thereof. Particular (b) is therefore struck out.
There is no doubt that the authorities of OKUDO VS. IGP (1988) 1 NWLR (pt.533) 335 AT 341 PARAS. D – E GUDA VS. KITTA (1992) 12 NWLR (pt.629) 21 at 39 and 58 where it was variously held that the arguments in support of grounds or any ground of appeal which are argumentative, lengthy, elaborate or which contain detailed reasons may be struck out, are quite apposite in the  circumstance of this ‘case as the grounds of Appeal and the particulars thereof are afflicted with the virus of prolixity, repetition, narration, verbosity and indeed argumentation.  I have done a surgical operation thereon as I have the discretion to do especially in this era of substantial justice and avoidance of technicality, and what is left of the particulars and Grounds of Appeal shorn of all its vices can sustain an Appeal on the merits and I so hold particularly as the learned Counsel for the Respondents has proffered arguments in the alternative to the Grounds of Appeal even in their defective form.
On the objection as to Grounds 4 and 5 which the learned Counsel for the Respondents contend are fresh issues raised for the first time on Appeal, I  am in total agreement with the learned Counsel for the Appellant that by the Application dated the 31st day of March, 2005, and filed on the 27th of April, 2005; the Appellant was granted leave by this Honourable court to introduce fresh issues of law as contained in Grounds 4 and 5 of the Amended Notice of Appeal.
I agree also with the learned Counsel that since the lower Court had found that there is an Appeal before the Supreme Court against the decision of this court which the Defendants rely upon in the plea of estoppel, it accords with the ends of justice for this court to determine whether in filing a fresh Suit in HIJ/17/2002, the Respondents are guilty of abuse of court process. With the greatest respect to the learned counsel for the Respondents, the dictum of Edozie J.S.C in Ezukwu vs. UKACHUKWU (2004) 17 NWLR (pt.902) at page 227 at 249.250 does not apply to the case at hand since leave was duly granted the Appellant to raise those fresh issues in this court. I shall therefore discountenance this aspect of the preliminary objection.
As for the Appellants brief it is trite that a Reply Brief like a Rejoinder to any fresh issue raised in the course of an oral or written Reply to proponent’s argument in the course of an address in the adjudication process. It cannot admit of a re-argument of the case of the proponent or Appellant’s case anew.
All other aspects of the Appellant’s Reply Brief except the portion touching on the Reply to the preliminary objection are repetitive of the original arguments of the Appellant and they are accordingly discountenanced.
On the whole I agree with the submission of the Appellant’s Counsel on the authorities of AKPAN VS. THE STATE (1992) 6 NWLR (pt.242) 439 and IBOSSA & ORS VS. JULIUS BERGER (2005) 15 NWLR (pt.948) 409, 421-422 that courts have deliberately moved away from the narrow technical and mechanical approach to justice but instead pursue substantial justice. This is not to say that the courts would encourage inelegance and slovenly approach to Counsel’s Briefs.
Accordingly, the preliminary objection of Counsel still succeeds in part.
On the submission that ex-facie, the appellant formulated two issues that is issue 1 which relates to Res Judicata and issue 2 on Abuse of court’ process and that Appellant had condensed three issues as one single issue, I tend to agree with the learned Counsel to the Plaintiffs/Respondents that the issues formulated by the learned counsel for the Appellant are not only novelle in style but ambiguous and my learned brother rightly held on the authority of OMOZEGHIAN VS. ADJARHO supra per AUGIE J.C.A. that a critical examination of the issues formulated by the Appellants Counsel, would support the contention of the Respondent’s Counsel that the law frowns at the splitting of issues into sub-issues that tend to confuse the main issues.
I am also in support of my lord Abdulahi J.C.A. that the issues formulated by the Appellant be discountenanced and the appeal determined on the issues formulated by the Respondent’s Counsel since they vividly capture the essence of the complaints of the Appellant in his Grounds of Appeal.
The issues formulated by Respondents are couched in the following terms:-
“1. Having regard to the unambiguous and mandatory conditions or ingredients of Res judicata, coupled with the state of pleadings and the peculiar circumstances of this case, whether the plea of Res Judicata can avail the Appellant – GROUNDS 1, 2 AND 3.
2. WHETHER SUIT NO. H1J/17/2002 constitutes an abuse of process.
On the issues relating to Estoppel per rem judicatam as pleaded by the Defendant/Appellant my Lord has dealt with the submissions copiously.
I only have to add that Estoppel per rem judicatam is a rule of public policy which is encapsulated in the twin Latin maxims “interest rei publicae ut sit finis litium”, and “Nemo debet vexari pro eadem causa” which translated into English means that it is in the interest of the public that there should be an end to litigation and that no man should be sued twice on the same ground. See OKUKUJE VS. AKWIDO (2001) 10 WRNR 1 at 25.  In this case whereas the lower court had held that the plaintiff in the previous Suits NO. HAD/64/2000 and APPEAL NO. CA/IL/18/2001 and indeed the present Suit HIJ/17/2002 are the same as well as the subject matter, he however held that the Defendants are not the same. My Lord Abdulahi J.C.A. agrees with this position as well as that of learned counsel for the Respondents. I fail to see my way through that position particularly in the light of the averments of the plaintiffs in Suit No. HAD/64/2000 where they stated that the 1st Defendant then the Attorney-General of Ekiti State was sued as Chief Legal officer/Adviser and member of the Executive Council of the State. (See paragraph 4 of the statement of claim).
In paragraph 5 thereof they stated that:
‘5 The second Defendant is sued as the Chief agent of the first Defendant in Ijero Local Government who carries out the orders of the first defendant in all things in Ijero Local Government including Chieftaincy matters.”
In Suit No.HIJ/17/2002 now on Appeal the Defendants are
(1) OBA ELIJAH OLADELE AYENI (OLUPOTI OF IPOTI;
(2) THE CHAIRMAN IJERO LOCAL GOVERNMENT, IJERO EKITI
(3) THE SECRETARY IJERO LOCAL GOVERNMENT AREA.
It is pertinent to note that the Olupoti of Ipoti (Oba Ayeni) was also a Defendant in the two suits.
As at 2002 when this suit was instituted the Secretary of Ijero Ekiti Local Government Area, who was appointed by the Chairman of that Local Government, had not ceased from being the Chief Agent of the Attorney-General (the Chief Legal Adviser) of the State. The said Secretary had not stopped carrying out orders of the 1st Defendant in-all things in Ijero Local Government including Chieftaincy matters.
Now, as at that time too, the Chief Executive of the Ijero Local Government Area was the Chairman of that Council. I agree with the learned counsel for the Appellant that the Secretary was an Agent of not only the Chairman but of the Local Government except where be acted outside the scope of his authority as far as chieftaincy matters were concerned which is not the case here.
In the same way it was the powers conferred on him by his principals – the Chairman and the Attorney General on behalf of the Chieftaincy Affairs Department, which is part of the Executive Council of the Government of Ekiti State that the Secretary of Ijero Local Government was exercising.
Apart from the argument proffered by the Learned Counsel for the Appellant and the case of MAVA VS. OSHUNTOKUN Supra where it was held that parties include those who ought to have been made parties, the learned Respondent Counsel agrees that the term ‘parties’ includes privies and those who may be interested in the out come of the case.
In SANTOS VS. OKOSI INDUSTRIES LTD & ANOR (1942) WACA 29 it was held that:-
“for the purpose of estoppel per rem judicatam ‘party’ means not only a person named as such but also one…… who being cognizant of the proceedings and of the fact that a party thereto is professing to act in his interest allows his battle to be fought by that party intending to take the benefit of the championship success.”
The question to be asked is whether this case as it stands, would affect the Chairman of Council, the Secretary and Attorney General as far as their respective authorities in Chieftaincy matters based on the state of the law in 2002 were concerned and I dare answer the question in the affirmative and reiterate that it would be wrong to hold that the Attorney-General, of Ekiti State Government have not been proceeded against. If they could be made parties in this case as far as this Chieftaincy matter is concerned then they are privies.
However, since my learned brother has rightly declared that the plaintiffs/Respondents who had earlier Appealed against the decision of ALADEJANA J. IN SUIT NO. HAD/64/2000 (APPEAL NO. CA/IL/18/2001) to Supreme Court have by filing suit no. HIJ/17/2002 been guilty of abuse of court process I shall say no more in respect of the issue of Res Judicata as the present suit the subject of this appeal was doomed from inception and has accordingly been dismissed.
I also hold that the Appeal succeeds in part. Suit No.: HIJ/17/2002 is hereby dismissed for constituting an abuse of process and I abide by other consequential orders as made by my learned brother including the issue of costs against the Respondents.